The welcome new arrival

Babies conceived now will be among the first to be born after improved laws on maternity rights come into effect. Meriel Schindler explains the legislation and says it's not just new parents who stand to gain from the changes

The tabloids have been speculating about whether Zoe Ball will have a second child when she is clearly missing work and desperate to return. If Zoe does want a second child and is planning to go back to work as an employee, then she would be wise to delay conception until later this year. She will need her baby to be born on or after 6 April 2003 to benefit from a raft of new rights. She will also need to have over 40 weeks' service with any new employer to exercise some of these rights.

The April 2003 start date is a fact not lost on the minister for women, Patricia Hewitt. Speaking in the Commons earlier this month, some nine months ahead of the introduction of the new rules, she announced to the nation: "Tomorrow night is the key date for would-be parents who want to take advantage of the new provisions".

The changes include improved maternity rights, introduction of paid paternity and adoption leave, as well as a statutory right to request flexible working. The changes substantially simplify existing law.

Let's start with maternity rights. All women, regardless of how long they have worked, will be entitled to 26 weeks' ordinary maternity leave. This is up from 18 weeks currently. Those with at least 40 weeks' service before the expected week of childbirth ("EWC") will be entitled to an extra 26 weeks' additional maternity leave. Such mothers therefore will be able to take up to a year off – a major increase from the current total of 40 weeks which those women with one year's service get.

Unfortunately, not all maternity leave is paid. However, the period during which women will be paid will increase to a total of 26 weeks. Of this, six weeks will be at the higher rate of 90 per cent of salary and the remaining weeks at the lower rate of £100 per week (up from £75 currently).

If a woman is ill wholly or mainly because of pregnancy at any time in the four weeks before her EWC, then her maternity leave starts automatically. As currently, women are prohibited from working in the two weeks following childbirth.

From next April, there will also be an entirely new right to paid paternity leave. Since 1999, all parents, including those of adoptive children, have been entitled to 13 weeks' parental leave. Take-up of this right has been very poor as parental leave is unpaid. For the first time, fathers and adoptive parents will have the right to two weeks' paid leave. Perhaps, just enough time for some paternal bonding to take place. The right to 13 weeks' unpaid parental leave will continue.

Paternity leave will be available to those who have 40 weeks' service before the EWC or the adoption. For all paternity leave, the employee has to have or expect to have responsibility for bringing the child up and he may be the biological father or be married to or the partner of the child's mother or adopter. This leave has to be taken within eight weeks of the birth or the adoption.

In the case of adoption, either parent will be able to take adoption leave. The rights partly mirror maternity leave: 26 weeks' paid ordinary adoption leave, followed by 26 weeks' unpaid additional adoption leave. However, unlike ordinary maternity leave, there is a requirement that the employee has 26 weeks' service by the week of the adoption. Statutory Adoption Pay ("SAP") will be the same as lower-rate statutory maternity pay. There is no higher-rate SAP.

Perhaps the biggest change is that for the first time, employees will also have a statutory right to request a change to their contract so that they can look after a child.

Until now, women have had to rely on complex indirect discrimination laws. This was a highly unsatisfactory route to flexible working – not least, as it left men out in the cold. A man would not be able to enforce child-friendly working hours unless he was able to point to a women in the same situation who would be allowed to work child-friendly hours. Such a refusal would be directly discriminatory against the man. This meant that if a man was the first to request child-friendly hours he would be unlikely to be able to push this through if he met with resistance.

From April 2003, employees can apply to vary the number of hours they work, when they work and where they work. It is anticipated that, at any time, just over 3.8 million employees will be entitled to submit such requests. The employee's application will have to detail the desired changes and their start date. The employee will also have to explain what, if any, effect the change would have on the employer and how this might be dealt with. The employee will also have to state their relationship to the child concerned. Employees will be able to apply any time up until shortly before the child's sixth birthday (or if the child is disabled, up until the child's 18th birthday).

Within 28 days of receiving such an application, the employer will have to fix a meeting to discuss the application. The employer then has to give his decision within 14 days of the meeting. If unfavourable, the employee will have a right of appeal. If the application is refused, the employee may not re-apply for a year.

The employer may only refuse flexible working where he is able to show certain statutory grounds such as additional cost; detrimental impact on quality or performance or the ability to meet customer demand; or insufficient work during the period the employee proposes to work. Any employee making such a request should bear each of the grounds in mind and preempt them in their application.

There will be statutory protection for employees who suffer detriment or are dismissed as a result of either making the application or exercising their right to flexible working. If the employee is dismissed, the tribunal will deem the dismissal to be unfair. Oddly, the statute does not enable the employer to reverse the change to the employee's work pattern once the child has reached six years of age or in the case of a disabled child, 18 years. The statute focuses on rights to vary hours to care for young or disabled children. There is no provision to apply for child-friendly hours when a child is over six and not disabled.

While the new flexible working law is a step in the right direction, it does not represent "joined-up policy" as it does not provide help to those working parents who need flexibility to look after older children after school.

Meriel Schindler is head of employment at Withers solicitors